# C_2010179EN.01000401.xml

| 3.7.2010 | EN | Official Journal of the European Union | C 179/4 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/4

---

Judgment of the Court (Grand Chamber) of 12 January 2010 (reference for a preliminary ruling from the Sozialgericht Dortmund — Germany) — Domnica Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe

(Case C-341/08) (1)

(Directive 2000/78/EC - Articles 2(5) and 6(1) - Prohibition of discrimination on grounds of age - Provision of national law setting a maximum age of 68 for practice as a panel dentist - Aim pursued - Measure necessary for the protection of health - Consistency - Appropriateness of the measure)

(2010/C 179/05)

Language of the case: German

Referring court

Sozialgericht Dortmund

Parties to the main proceedings

Applicant: Domnica Petersen

Defendant: Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe

Joined parties: AOK Westfalen-Lippe, BKK-Landesverband Nordrhein-Westfalen, Vereinigte IKK, Deutsche Rentenversicherung Knappschaft-Bahn-See — Dezernat 0.63, Landwirtschaftliche Krankenkasse NRW, Verband der Angestellten-Krankenkassen eV, AEV — Arbeiter-Ersatzkassen-Verband eV, Kassenzahnärtzliche Vereinigung Westfalen-Lippe

Re:

Reference for a preliminary ruling — Sozialgericht Dortmund (Germany) — Interpretation of Article 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p.16) — Prohibition of discrimination based on age — Concepts of ‘legitimate aim’ which may justify different treatment based on age and ‘appropriate and necessary means’ of achieving that aim — National provision fixing a maximum age for a panel dentist, with the aim of protecting patients’ health

Operative part of the judgment

| 1. | Article 2(5) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding a national measure, such as that at issue in the main proceedings, setting a maximum age for practising as a panel dentist, in this case 68 years, where the sole aim of that measure is to protect the health of patients against the decline in performance of those dentists after that age, since that age limit does not apply to non-panel dentists.;
  Article 6(1) of Directive 2000/78 must be interpreted as not precluding such a measure where its aim is to share out employment opportunities among the generations in the profession of panel dentist, if, taking into account the situation in the labour market concerned, the measure is appropriate and necessary for achieving that aim.
  It is for the national court to identify the aim pursued by the measure laying down that age limit, by ascertaining the reason for maintaining the measure. |
| --- | --- |

1.

Article 2(5) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding a national measure, such as that at issue in the main proceedings, setting a maximum age for practising as a panel dentist, in this case 68 years, where the sole aim of that measure is to protect the health of patients against the decline in performance of those dentists after that age, since that age limit does not apply to non-panel dentists.;

Article 6(1) of Directive 2000/78 must be interpreted as not precluding such a measure where its aim is to share out employment opportunities among the generations in the profession of panel dentist, if, taking into account the situation in the labour market concerned, the measure is appropriate and necessary for achieving that aim.

It is for the national court to identify the aim pursued by the measure laying down that age limit, by ascertaining the reason for maintaining the measure.

| 2. | If legislation such as that at issue in the main proceedings, having regard to its objective, were contrary to Directive 2000/78, it would be for the national court hearing a dispute between an individual and an administrative body such as the Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe to decline to apply that legislation, even if it were prior to that directive and national law made no provision for disapplying it. |
| --- | --- |

2.

If legislation such as that at issue in the main proceedings, having regard to its objective, were contrary to Directive 2000/78, it would be for the national court hearing a dispute between an individual and an administrative body such as the Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe to decline to apply that legislation, even if it were prior to that directive and national law made no provision for disapplying it.

---

(1)  OJ C 260, 11.10.2008.

---